Delhi High Court
C.L. Batra vs Municipal Corporation Of Delhi on 21 August, 1997
Equivalent citations: 1997VIAD(DELHI)36, 68(1997)DLT817, 1997RLR616
Author: M.S.A. Siddiqui
Bench: M.S.A. Siddiqui
JUDGMENT M.S.A. Siddiqui, J.
(1) The petitioner is an owner of Grindlay Cinema, New Friends Colony, New Delhi. The petitioner applied to the respondent for sanction of certain additions or alterations in the said building. On 8.4.1996, the petitioner was informed that the building plan approved by the respondent was lying ready and the same would be released only on furnishing certain documents including a No Objection Certificate from the House-Tax Department. Thereafter, petitioner submitted all the documents except the N.O.C. from the House Tax Department as demanded by the respondent. Inasmuch as the sanction of the building plan was not released, the petitioner has filed this writ petition under Article 226 of the Constitution of India after making several representations.
(2) It is contended on behalf of the respondent that since petitioner failed to submit the No Objection Certificate from the House Tax Department, sanction of the building plan was withheld in accordance with the executive instructions contained in the office orders dated 2.7.1993 and 20.10.1993 (Annexure R-1). 3.The office orders dated 2.7.1993 and 20.10.1993 were issued by the Engineer- in-Chief of the Municipal Corporation of Delhi. The point that arises for decision in this case is whether the Engineer-in-Chief was competent to issue the said office orders imposing ban on grant of sanction under Section 336 of the Delhi Municipal Corporation Act (for short the Act) without obtaining N.O.C. from the House Tax Department. A consideration of this question calls for an examination of certain revisions of the Act and the bye-laws made thereunder. Sections 333 and 334 of the Act provide that any person who intends to erect, re-erect or make alterations in any place in a building or demolish any building shall give notice in writing to the Commissioner of his said intention in the prescribed form and such notice shall be accompanied by such documents and plans as may be so prescribed. Section 336 empowers the Commissioner to accord or refuse sanction on the grounds enumerated therein. Section 336 is as follows : "Sanction or refusal of building or work.-(1) The Commissioner shall sanction the erection of a building or the execution of a work unless such building or work would contravene any of the provisions of Sub-section (2) of this section or the provisions of Section 340. (2) The grounds on which the sanction of a building or work may be refused shall be the following, namely : (a) that the building or work or the use of the site for the building or work of any of the particulars comprised in the site plan, ground plan, elevation, section or specification would contravene the provisions of any bye-law made in this behalf or of any other law or rule, bye-law or order made under such other law; (b) that the notice for sanction does not contain the particulars or is not prepared in the manner required under the bye-laws made in this behalf; (e) that any information or documents required by the Commissioner under this Act or any bye-law made thereunder has or have not been duly furnished; (d) that in case falling under Section 312, layout plans have not been sanctioned in accordance with Section 313. (e) that the building or work would be an encroachment on Government land or land vested in the Corporation; (f) that the site of the building or work does not abut on a street or projected street and that there is no access to such building or work from any such street by a passage or pathway appertaining to such site. (3) The Commissioner shall communicate the sanction to the person who has given the notice; and where he specified in Sub-section (2) or under Section 340 he shall record a brief statement of his reasons for such refusal and communicate the refusal along with the reasons therefor to the person who has given the notice. (4) The sanction or refusal as aforesaid shall be communicated in such manner as may be specified in the bye-laws made in this behalf."
(3) Section 337 of the Act lays down conditions under which building or work may be proceeded with. Section 337 is as follows: "When building or work may be proceeded with:-(1) Where with in a period of sixty days, or in cases falling under Clause (b) of Section 331 within a period of thirty days, after the receipt of any notice under Section 333 or Section 334 or of the further information, if any, required under Section 335 the Commissioner does not refuse to sanction the building or work or upon refusal, does not communicate the refusal to the person who has given the notice, the Commissioner shall be deemed to have accord sanction to the building or work and the person by whom the notice has been given shall be free to commence and proceed with the building or work in accordance with his intention as expressed in the notice and the documents and plans accompanying the same; Provided that if it appears to the Commissioner that the site of the proposed building or work is likely to be affected by any scheme of acquisition of land for any public purpose or by any purposed regular line of the public street or extension, improvement, widening or alternation of any street, the Commissioner may withhold sanction of the building or work for such period not exceeding three months as he deems fit and the period of sixty days or as the case may be, the period of thirty days specified in this sub-section shall be deemed to commence from the date of expiry of the period for which the sanction has been withheld. (2) Where a building or work is sanctioned or is deemed to have been sanctioned by the Commissioner under Sub-section (1), the person who has given the notice shall be bound to erect the building or execute the work in accordance with such sanction but not so as to contravene any of the provisions of this Act or any other law or of any bye-law made thereunder. (3) If the person or anyone lawfully claiming under him does not commence the erection of the building or the execution of the work within one year of the date on which the building or work is sanctioned or is deemed to have been sanctioned, he shall have to give notice under Section 333 or, as the case may be, under Section 334 for fresh sanction of building or the work and the provisions of this section shall apply in relation to such notice as they apply in relation to the original notice. (4) Before commencing the erection of a building or execution of a work within the period specified in Sub-section (3), the person concerned shall give notice to the Commissioner of the proposed date of the commencement of the erection of the building or the execution of the work; Provided that if the commencement does not take place within seven days of the date so noticed, the notice shall be deemed not to have been given and a fresh notice shall be necessary in this behalf.
(4) Section 481 of the Act confers power upon the Corporation to make bye laws. By virtue of this power, the building bye-laws for Union Territory of Delhi have been framed by the Corporation. Para 6 of the Building Bye Laws lays down the procedure for obtaining sanction for building plans. Paras 6.1.1 and 6.2 provide that notice under Section 333 shall be accompanied by four copies of plans and statements, specifications and certificate of supervision and ownership title and other documents as prescribed by Paras 6.1.1 to 6.2.8 of the bye-laws. Para 6.2.9 of the bye-laws prescribes documents to be submitted alongwith the notice for obtaining sanction. It is as under : "Document Application for building permit shall be accompanied by the following documents: (a) ownership Documents. Lease deed, sale-deed etc. duly accompanied by an annexed site plan giving the physical description of the plot/ property. In such cases where lease-deed has not been executed, no objection certificate from the Competent Authority shall be submitted; (b) Documents under Urban Land (Ceiling and Regulation) Act, 1976; (e) Undertaking for non-stacking of building material on public property road in case of plot measuring more than 418 sq.mtr. in area to be submitted in the proforma as given in Appendix 'M'; (d) In case of any deviation from the terms and conditions stipulated in the lease-deed/ownership document, necessary clearance from the Competent Authority; (e) No Objection Certificate from the Competent Authority regarding land use as per Master/Zonal Plan, if required; (f) Approval from the Chief Inspector of Factories in case of Industrial Buildings; (g) Approval from Chief Controller of Explosives, Nagpur and Chief Fire Officer, Delhi in case of hazardous buildings; (h) Indemnity Bond in case of proposal for the construction of a basement as given in Appendix 'N'."
(5) Thus, there is no express provision in the Act conferring upon any authority including the Commissioner to demand a No Objection Certificate of the House Tax Department before according sanction under Section 336 of the Act. Even the Building Bye-Laws do not contain any provision regarding production of No Objection Certificate from the House Tax Department, though the Para 6.2.9. of the bye-laws contains elaborate provision in the matter of submission of documents. Learned Counsel for the respondent has fairly conceded that there is no express provision either in the Act or in the Bye Laws empowering Commissioner or any other authority to demand No Objection Certificate from the House Tax Department before according sanction of the building plan submitted for approval. But the learned Counsel, however, contended that the executive instructions contained in the office orders were issued to fill up yawning gaps in the Bye Laws. Learned Counsel for the respondent further submitted that this is a established practice and procedure followed by the Municipal Corporation for a long time and the same has been followed in the case of the petitioner as well. Reliance has been placed on the decisions rendered by the Apex Court in State of uttar Pradesh and Others v. Dr. Anupam Gupta and Others, 1993 Supp (1) Scc 594, Union of India and Another v. Arnrit Singh and Others, ; State of Maharashtra and Another A.W. Dhope and Others v. Sanjay Thakre and Others, 1995 Supp (2) Scc 407. I am unable to accept this argument as mere acquiescence even for a long period does not make a void order valid. Merely because a practice has remained in vogue for long period without any challenge, though it has no sanctity in law, it cannot be up-held by the Court. It has to be borne in mind that any Administrative act or order which is ultra vires or outside jurisdiction is void in law. This is because in order to be valid it needs statutory authorisation,and if it is not with in the powers given by the Act or the Bye Laws made thereunder, it has no legal leg to stand on. No doubt, administrative instructions consistent with rules can be issued to fill up yawning gaps in the rules and they form integral part of the rules. In the instant case the question is whether the No Objection Certificate from the House Tax Department should have been produced by the petitioner seeking sanction of the building plan. Since neither the Act nor the bye-laws made thereunder contemplates such a requirement of a No Objection Certificate, I do not think it is permissible for the Engineer-in-Chief to add one more document in the list of documents to be submitted alongwith the notice as prescribed by Para 6.2.9 of the bye-laws. In my opinion the executive fiat imposing ban on releasing the grant of sanction under Section 336 of the Act without No Objection Certificate from the House Tax Department not supported by any legislative measure is liable to be quashed being violative of Section 336 of the Act and the Building Bye Laws.
(6) For the foregoing reasons the writ petition is allowed and the office Order No. 7/EE(B)/HQ/93 dated 2.7.1993 and the Order No. 11/EE(B)/HQ/93 dated 20.10.1993 issued by the Engineer-in-Chief of the Municipal Corporation of Delhi are hereby quashed. The respondent is directed to release the sanction of the building plans submitted by the petitioner within a week from today. No order as to costs.